Triennial Prescription of Accounts, Act 1579. c. 83.
Dickson v. M'Aulay
Date: 5 July 1681 Case No. No 288.
Furnishing after three years cannot be proved by witnesses, either by way of action or exception; but a person having writ to a merchant desiring him to furnish necessaries to his wife, and to place it to his account, the suit here being founded upon writ, the quantity was found probable by witnesses after three years.
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Marion Dickson, as executrix to Mr William Cockburn her husband pursues George M'Aulay for the entertainment and furnishing to his wife and his son, for the expenses of christening, nursing, and burying of him, and for probabation produces a letter of the defender's to Mr William, “to let his wife want nothing necessary, and to place it to his accompt.” The defender alleged compensation, because he entertained the defunct's unmarried daughter Catharine Cockburn for the space of two years, and likeways Patrick Cockburn his son for the space of six months in his sickness. The pursuer answered, That the entertainment and furnishing by the defender is only probable scripto vel juramento, being long past three years since it was done. It was replied, That the pursuer's debt is not totally proved by writ, but witnesses must prove the quantities, and it is also past three years; and albeit the defender hath no action for the furnishing made by him, but by oath or writ, yet it is competent by way of defence, and the defender was in tuto not to pursue, because he knew that the pursuer would have compensed against him, and he did also conceive that if the pursuer at any time should insist, his compensation would take effect by exception,
The Lords found that the pursuit being founded upon writ, viz. “the defender's missive letter,” the quantities might be proved by witnesses, even after three years; but the defender having no writ, his furnishing being past three years, could not be proved by witnesses, either by way of action or exception.
